Walter FRIEDRICH, individually and on behalf of a class of
similarly situated persons, Plaintiffs-Appellees,
v.
CITY OF CHICAGO and Fred Rice, Superintendent of Police, in
his official capacity, Defendants-Appellants.
No. 88-3043.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 8, 1989.
Decided Oct. 31, 1989.
William M. Hannay, Christine M. Arden, Schiff, Hardin & Waite, Harvey M. Grossman, Barbara P. O'Toole, Jane M. Whicher, Chicago, Ill., for plaintiff-appellee Walter Friedrich.
Judson H. Miner, Corp. Counsel, Ruth M. Moscovitch, Appeals Div., Frederick S. Rhine, Jonathan P. Siner, Jean Dobrer, Asst. Corp. Counsel, Office of the Corp. Counsel, James D. Montgomery, Montgomery & Associates, Chicago, Ill., for defendants-appellants.
Leslie A. Jones, Chicago, Ill., for amicus curiae Chicago Council of Lawyers.
Roslyn C. Lieb, Chicago, Ill., for amicus curiae Chicago Lawyers' Committee for Civ. Rights Under Law, Inc.
Jeffrey B. Gilbert, Legal Assistance Found. of Chicago, Chicago, Ill., for amicus curiae Legal Assistance Foundation of Chicago.
Ruben Castillo, Chicago, Ill., for amicus curiae Mexican American Legal Defense and Educ. Fund.
Alexander Polikoff, Chicago, Ill., for amicus curiae Business & Professional People for the Public Interest.
Douglas W. Cassel, Jr., Chicago, Ill., for amicus curiae Chicago Chapter, Nat. Lawyers Guild.
Before CUMMINGS and POSNER, Circuit Judges, and GORDON, Senior District Judge.*
POSNER, Circuit Judge.
The question presented by this appeal is whether the judge in a civil rights case may order the losing party to reimburse the cost incurred by the winner to hire an expert witness. The Civil Rights Attorney's Fees Awards Act of 1976, amending 42 U.S.C. Sec. 1988, provides that in any suit under a variety of federal civil rights statutes, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs" paid by the loser. As interpreted by the courts, the Act entitles a prevailing plaintiff to such an award as a matter of course, but a prevailing defendant only if the suit was completely groundless. Hensley v. Eckerhart,
The specific question presented by this appeal, however, is new in this circuit and has caused a division among several others. See, e.g., West Virginia University Hospitals, Inc. v. Casey,
The Supreme Court and this court have rejected the strongest argument against the district court's result, the argument from the statute's "plain language." The fee statute authorizes the award of a reasonable attorney's fee, and an expert witness or consultant is not an attorney. But neither is a paralegal, yet paralegal fees may be awarded (Jenkins ). An attorney's travel expense or long-distance telephone expense is not an attorney's fee, yet is awardable too (Henry ). And although the statute makes no distinction between a prevailing plaintiff and a prevailing defendant, the standard for an award of fees is different in the two cases (Hensley ).
The defendants argue that a paralegal is more like an attorney than is an economist, a psychiatrist, a police commissioner (one of the experts here), or a sociologist (the other--William Whyte, of Organization Man fame). That may be, but it does not touch the question whether the fee statute is to be read literally. A sheep is more like a goat than it is like an ostrich; but if a statute regulating sheep had been applied to goats, an attempted application to ostriches could not be defeated simply by pointing out that an ostrich is not a sheep. If "attorney" in the fee statute can mean something different from attorney, and "fee" something different from fee, then maybe one of the other things "attorney's fee" can mean is the fee paid an expert witness or consultant.
We are quite aware that appeals to literalism are common. The cases are thick with references to "plain meaning" and with such tired saws as that interpretation must begin with the words of the statute--and stop there if they are clear. See, e.g., United States v. Ron Pair Enterprise, Inc., --- U.S. ----,
When a court can figure out what Congress probably was driving at and how its goal can be achieved, it is not usurpation--it is interpretation in a sense that has been orthodox since Aristotle--for the court to complete (not enlarge) the statute by reading it to bring about the end that the legislators would have specified had they thought about it more clearly or used a more perspicuous form of words. That is what the Supreme Court did in the Jenkins case. The civil rights fee statute had been passed the year after Alyeska Pipeline Service Co. v. Wilderness Society,
Much the same argument can be made for the shifting of experts' fees. Experts are not only hired to testify; sometimes they are hired, also or instead, to educate counsel in a technical matter germane to the suit. The time so spent by the expert is a substitute for lawyer time, just as paralegal time is, for if prohibited (or deterred by the cost) from hiring an expert the lawyer would attempt to educate himself about the expert's area of expertise. To forbid the shifting of the expert's fee would encourage underspecialization and inefficient trial preparation, just as to forbid shifting the cost of paralegals would encourage lawyers to do paralegals' work. There is thus no basis for distinguishing Jenkins from the present case so far as time spent by these experts in educating the plaintiffs' lawyer is concerned (we can find no merit in a distinction based on the difference between an employee and an independent contractor), and so we think the district judge must have been right at least in part. If so, this is a reason for thinking he was right in whole, for it is difficult to separate time spent by an expert in educating the lawyer from time spent in preparing to testify. Sometimes it is impossible; the same time may serve both purposes.
Time actually spent on the stand, however, is not easily conceived of as a substitute for lawyer time or lawyer work product. And such time is easily separated out from the other time spent by an expert on a case, though usually it is just the tip of the iceberg; in this case, so far as we can determine, less than ten percent of the money paid the experts was for time actually testifying. But the Court in Jenkins did not insist on a relation of substitution for paralegal fees to be shifted, and of course paralegals do not just do at lower cost what lawyers do. In part because they are cheaper, they do things that lawyers would not consider worth their while to do. They expand the scope of trial preparation. And so it is with experts.
But when applied to the time the expert spends on the stand, this analysis reckons without the general federal cost and witness-fee statutes, and their interpretation by the Supreme Court in Crawford Fitting Co. v. J.T. Gibbons, Inc., supra, anticipated in Chicago College of Osteopathic Medicine v. George A. Fuller Co.,
Crawford was not however a case in which the judge had rested his award of witness fees on another statute. And section 1821(a)(1) is, by its own terms, inapplicable where a statute makes other provision for costs or witness fees. The question left open by Fuller (see
The defendants argue that Crawford requires reversal because the Court said, "We will not lightly infer that Congress has repealed Secs. 1920 and 1821, either through Rule 54(d) or any other provision not referring explicitly to witness fees.... We hold that absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. Sec. 1821 and Sec. 1920."
The defendants press the following argument on us. When Congress passed the civil rights fees act it must have known, or at least it should be presumed to have known, that 28 U.S.C. Secs. 1821 and 1920 were on the books and read together limited witness fees to $30 a day unless Congress provided otherwise. Therefore if Congress had wanted to lift the limit for expert witnesses in civil rights cases it would have said so. Repeals by implication are disfavored. See, e.g., Morton v. Mancari,
We expressed our doubts about this well-known "canon of construction" in Edwards v. United States,
If Congress's knowledge of the entire contents of the United States Code cannot realistically be "presumed"--and it cannot--then the best that can be said for the canon against repeals by implication is, first, that it provides a mechanical rule for deciding difficult cases and thus makes law simpler and curbs judicial discretion, and, second, that it encourages legislators and their staffs to do a thorough search of previous statutes before enacting a new one. The first point identifies real, although limited, social goods (legal simplification and the reduction of judicial discretion), but the second strikes us as unrealistic about the conditions under which legislatures work. The canon seems in any event particularly inapt in a case such as this, because there is nothing to indicate that the general federal cost-shifting statutes express hostility to awarding the fees of party-retained expert witnesses in cases governed by a statute designed to enlarge the judicial power to shift costs. The issue had not arisen during the deliberations that preceded the enactment of the general statutes. If there is no conflict at the level of policy or purpose, then to give effect to the policy behind the later statute is not a "repeal" of the earlier one in a practical sense.
Perhaps the main problem with the canon is semantic--the connotations of "canon" and "canonical," which makes it sound like a rigid rule, whereas it may just be a reminder not to assume lightly that Congress repealed a statute without saying so. But we need not continue this exploration of the "canon" against repeals by implication, for it is not in fact applicable to this case. The witness fee statute by its own terms does not apply where Congress has made other provision for witness fees, so if the civil rights fees statute is such other provision there is no repeal or impairment of the earlier statutes. The plaintiffs say it is, but acknowledge that this appears not from the text of the statute but from its history and purpose. They emphasize a statement on the House floor by one of the bill's sponsors, Congressman Drinan, "that the phrase 'attorney's fee' would include the values of the legal services provided by counsel, including all incidental and necessary expenses incurred in furnishing effective and competent representation." 122 Cong.Rec. H35123 (Oct. 1, 1976). This statement is entitled to little if any weight in determining the meaning of the statute, and not only because it does not mention expert-witness fees. Floor debates are not a reliable guide to the meaning of statutes. They are poorly attended and members of Congress can make additions to the Congressional Record after the debate without notice to their colleagues. See Katzmann, Summary of Proceedings, in Judges and Legislators: Toward Institutional Comity 162, 175 (Katzmann ed. 1988).
Of slightly greater significance is the fact that the Senate committee report cites, as examples of cases that had been overruled by Alyeska and would be reinstated as it were by the new statute, several cases in which courts had awarded expert-witness fees along with attorney's fees in the literal sense. The citation is indirect. The report notes that in the overruled cases the courts had been "following Congressional recognition in newer statutes of the 'private attorney general' concept [and] exercising their traditional equity powers to award attorneys' fees." S.Rep. No. 1011, 94th Cong., 2d Sess. 4 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5911. In support of this proposition the report cites to a list of cases in the committee's hearings, see id. at 4 n. 3, U.S.Code Cong. & Admin.News 1976, p. 5911--and if one goes to this list one will find several case summaries that state that expert-witness fees had been awarded in the case. See Legal Fees--Hearings before the Subcomm. on Representation of Citizen Interests of the S.Comm. on the Judiciary, 93d Cong., 1st Sess. 911, 917, 1060 (1973).
Consistent with our skepticism about legislative omniscience, we are not convinced that these documents show that Congress actually adverted to the question whether expert-witness fees could be shifted along with attorney's fees. See Blanchard v. Bergeron, --- U.S. ----,
The question what a statute means is only in part a function of what the legislators thought it meant. The scope of legislation is not circumscribed by the conscious thoughts of the legislators. Nor does the answer to an interpretive question turn on how the statute might be read by someone utterly ignorant of its background or by the same someone reading with the same literalism statements in the legislative history. "Clarity depends on context, which legislative history may illuminate." In re Sinclair, supra,
The most telling clue to the statute's meaning is the passage quoted above from the Senate committee report, discussing the equitable power exercised by courts prior to Alyeska, and a companion statement that "this bill creates no startling new remedy--it only meets the technical requirements that the Supreme Court has laid down if the Federal courts are to continue the practice of awarding attorneys' fees which had been going on for years prior to the Court's May decision [Alyeska ]." S.Rep. No. 1011, supra, at 6, U.S.Code Cong. & Admin.News 1976, p. 5913. The courts that until Alyeska had shifted attorney's fees and other expenses, including expert-witness fees, had relied on the existence of a federal equity power. "There is ample authority, outside the civil rights area, to support the proposition that the allowance of attorneys' fees and expenses of preparation for trial is in the discretion of the district court sitting in equity where exceptional circumstances call for their allowance in order to do justice between the parties." Lee v. Southern Home Sites Corp.,
It had long been understood that when expenses of litigation were shifted pursuant to the equity powers of the district court, the statutes providing for the taxing of "costs," such as section 1920 (which in turn incorporates by reference the limitations on witness fees in section 1821), did not apply. See, e.g., Henkel v. Chicago, St. Paul, Minneapolis & Omaha Ry.,
We anticipate a floodgates argument of the following form. If the civil rights fees statute is interpreted to shift the entire expenses of the prevailing plaintiff to the defendant, then plaintiffs will seek awards for the opportunity costs of their time spent in testifying or preparing to testify, or for medical expenses for treating the anxiety that litigation can trigger, or for the other consequential damages of participating even in successful litigation. But there is a reasonably bright line, which we do not think the framers of the fee statute meant to cross in seeking to resurrect a line of cases that had respected the line, between expenses incurred in hiring the inputs (of lawyer and other time, copying, and the like) necessary to prosecute a suit, and expenses incurred as a consequence of being a party even if you are indemnified for the full costs of suit. The latter category of expense raises problems of measurement and causality that the former does not and that even the most generous fee-shifting regimes exclude. See, e.g., United States v. McPherson,
It could of course be argued that one-way fee-shifting, which is essentially the regime created for civil rights litigation by the cases cited in Hensley, induces too much litigation. If so, then allowing expert-witness fees to be shifted is a move in the wrong direction. Maybe a big move, since those fees can be substantial--in this case they are almost one-fourth of the total award of fees, which in turn was the only form of monetary relief that the plaintiff and his class obtained. But the propriety of one-way fee shifting in civil rights cases was resolved when the Supreme Court held on the basis of the legislative history of the civil rights fees statute that prevailing plaintiffs are to be treated more generously than prevailing defendants. It would be both arbitrary and inconsistent with our best guess as to the meaning of the statute to hold that, of all expenses ordinarily shifted under fee-shifting statutes, only expert-witness fees are excluded.
We do not want to exaggerate the significance of our holding, however. There is little evidence that the shifting of fees has ever made much difference in the propensity to bring civil rights suits. See Eisenberg & Schwab, The Reality of Constitutional Tort Litigation, 72 Cornell L.Rev. 641, 688-89, 693 (1987); Schwab & Eisenberg, Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 Cornell L.Rev. 719, 755, 766 (1988); cf. Percival & Miller, The Role of Attorney Fee Shifting in Public Interest Litigation, 47 Law & Contemp.Prob., winter 1984, at 233, 246-47 (1984). If it has not, then it is unlikely that our decision today will have a large practical impact, since expert-witness fees will ordinarily be only a fraction of attorney's fees.
AFFIRMED.
Notes
Hon. Myron L. Gordon of the Eastern District of Wisconsin, sitting by designation